Citation Nr: 0928797 Decision Date: 07/31/09 Archive Date: 08/04/09 DOCKET NO. 05-12 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than March 16, 1999, for a grant of service connection for asthma. 2. Entitlement to an initial rating in excess of 30 percent prior to October 26, 2004, and in excess of 60 percent thereafter, for asthma. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The Veteran had active service from August 1987 to December 1990. This matter was brought to the Board of Veterans' Appeals (Board) primarily from rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The VARO in Columbia, SC had jurisdiction prior to October 2002. The Veteran provided testimony before the undersigned Acting Veterans Law Judge at the VARO on Travel Board in July 2008. A transcript is of record. Tr. In a decision in December 2008, the Board denied an earlier effective date (EED) prior to June 1, 2001, for a grant of service connection for lumbosacral strain; and denied entitlement to an EED prior to March 19, 2002, for a grant of service connection for gastroesophageal reflux disease (GERD). The Board noted in the December 2008 decision that the issues shown on the front page were inextricably intertwined, and accordingly, adjudication of the Veteran's EED claim for a grant of service connection for asthma was deferred. The issue of entitlement to an initial disability rating greater than 30 percent prior to October 26, 2004, and greater than 60 percent thereafter, for asthma, was remanded for specific development. FINDINGS OF FACT 1. The Veteran's initial informal claim of record identifying his disability for purposes of VA compensation for asthma as a result of service was a VA clinic report, dated July 14, 1995; the claim remained open until he was provided with and filed a claim form in 1999. 2. From June 1995 to the change in the regulations in October 1996, the Veteran's asthma was always moderate and more often than not was severe, with frequent attacks, marked dyspnea on exertion between attacks, and only temporary relief by medication, but without more severe symptoms to include marked weight loss or other evidence of a severe impairment of health. 3. Since October 1996, his symptoms have been the same or somewhat worse, and more often than not the Veteran has a significant impairment of FEV-1/FVC or FEV-1 of predicted value, often monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids; but he not had more than one attack per week with episodes of respiratory failure, and while he continues with inhalers and other medications including prednisone, he is not on high dose corticosteroids or immuno-suppressive medications; his symptomatology causes demonstrable impairment of his daily functioning. CONCLUSIONS OF LAW 1. The criteria for an EED (prior to March 16, 1999) from July 14, 1995, for the award of service connection for asthma have been met. 38 U.S.C.A. §§ 5103, 5107, 5110, 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.155, 3.159, 3.400, 20.200, 20.201, 20.302 (2008). 2. The criteria for a 60 percent rating and no more for service-connected asthma from July 14, 1995 are met. 38 U.S.C.A. 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.97, Diagnostic Code 6602 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2008). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Appeals for Veterans Claims, in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the aggregate, the Board finds that the RO has satisfied the duty to notify and assist under the VCAA. The Board finds that the content of letters and other communications complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Any other defect with respect to timing was harmless error. See Mayfield, supra. He was advised of the opportunities to submit additional evidence after which additional data was obtained and entered into the record. The Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He has submitted additional data, and has indicated that he has no other information or evidence to substantiate the claim. In addition, it appears that all obtainable evidence identified by the appellant relative to the claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of the current appeal, nor have they suggested in any way that there is any prejudice due to a lack of proper VA notice or assistance. The appellant and his representative herein have demonstrated actual knowledge of, and have acted on, the information and evidence necessary to substantiate the pending claim. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim). As regards the Vazquez case, the notifications to the Veteran were entirely adequate to inform him, or any reasonable person for that matter, of what was required, and that he needed to provide evidence with regard to how his disabilities affect him in everyday, daily life. There is no prejudicial error either alleged or shown. In this case, any absence of any information was harmless error and, to whatever extent the decision of the Court in Dingess, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board notes that such information was provided to the appellant. Moreover, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and any presumption of error as to the first element of VCAA notice has been rebutted in this case. See Shinseki v. Sanders, supra. Accordingly, we find that VA has satisfied its duty to assist the appellant in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. With regard to this appeal, no useful purpose would be served in remanding this matter for yet more development as this would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). EED Applicable Criteria, Factual Background and Analysis The award of effective dates is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. According to the statute and regulation, the effective date of an evaluation and award of compensation based upon an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The U. S. Court of Appeals for Veterans Claims (Court) has held that the date of the filing of a claim is controlling in effective-date determinations. See Lalonde v. West, 12 Vet. App. 377, 380 (1999). The Court also found that the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was ultimately awarded was filed with VA. Under 38 C.F.R. § 3.155, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. The Court has held that the mere presence of a disability does not establish intent on the part of a claimant to seek service connection for that disability. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). See also Brannon v. West, 12 Vet. App. 32, 135 (1998). Since the Board is required to address all potential arguments, it is noted that points relevant to an earlier effective date which might have been made but were not specifically made in this case include whether there might have been clear and unmistakable error (CUE) in a prior rating action [there was no such prior action nor is it herein claimed]; or that he had a claim pending which was somehow overlooked. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). The Veteran had active service from August 1987 to December 1990. The Veteran submitted a VA Form 21-526, signed and date stamped on the front as received on March 16, 1999. Of note is that the Veteran checked on that form that he had previously filed for VA hospitalization or medical care and educational benefits. Thus, although no apparent attempt was then made to obtain same, VA was not only on notice of such prior activities, care and/or intent, but the actual records for such care were in VA's constructive possession from the date of such records. The VARO obtained his packets of service records in 1999, and sent him a letter indicating the claim was being pursued in September 1999. In a VA Form 21-4138 filed by the Veteran in October 1999, he clarified that he had been seen in service for restrictive airway disease and asthma, and from then and even after he got out of service, he was provided with inhalers and medications, and seen initially at a (named) Army hospital. He said that he had been going to that facility from separation until 1993 when he moved away, at which time he was given nearly a year's supply of inhalers. He reported that he had returned to the state in 1994 and went to the VA. No significant packet of records have been forthcoming from the Army facility cited above although the Veteran submitted records of several clinical visits, the earliest one of which was dated May 20, 1992. Treatment records were subsequently received from various sources, including from the VA facility where he was apparently first seen for ongoing service-originated symptoms after his return to the state. He was often prescribed an Albuterol oral inhaler. July 14, 1995 is the date of the earliest annotated VA clinical visit. The Board would note from the outset that the Veteran is credible, and it is entirely possible that he went seamlessly from service, and getting treatment to include recurrent inhalers, etc., while in service, to using the nearby military facility thereafter. He has stated that he did this during the period from service separation in 1990 until leaving and then returning to the state, wherein he sought VA treatment. There are few Army hospital records available for that period, but the few that he has submitted clearly document that he was in fact seen there certainly in 1992, and there is no sound basis for discounting his allegation as to having been seen there before that. Had the Army post- service records been in the possession of VA, they might have under other circumstances, constituted an informal claim. However, to the contrary, they did not, on the face of it, identify a VA benefit sought. And not only was VA unaware of them, but these records were never in the VA's possession, constructive or real, until after his formal claim in 1999. Nonetheless, there are several rather finite pieces of documentation in the file. First, the initial actual formal claim filed by the Veteran with regard to his asthma and service condition was, as has been noted by the VARO on March 16, 1999. However, as he clearly stated on that application he had already sought hospital or treatment from VA. And the collateral evidence clearly shows that he was in fact regularly [and relatively frequently by his own accounts and given the nature of the care based on comments thereon as to his recurrences, etc.], being seen within the VA system for that same disability which he indicated had started in service. In fact he was receiving essentially the same treatments he had had in service and at a military facility since service. In that regard, however, a careful review of the available VA clinical records shows no notation of such a visit for asthma, including inhaler refills, prior to July 14, 1995. Nonetheless, this date can be construed as a legitimate informal claim, at which point under pertinent regulatory criteria, a formal claim form should have been sent under pertinent guidelines. An informal claim may remain open in perpetuity if a formal claim form is not sent. In that regard, the one year time period does not begin to run until the form is sent. See 38 C.F.R. § 3.109 and 3.155; and Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992). In this case, notwithstanding the affirmative obligation to do so, there is no indication that any form was then sent, only that such a form was received from the Veteran on March 16, 1999, and it was ultimately upon that form that the benefit was granted. Absent evidence to the contrary, it must be assumed in his favor that no form was sent to him in the interim from the informal claim on July 15, 1995 and the 1999 filing. In the unusual circumstances of this case, the Board finds that evidence supports a finding that an EED for the grant of service connection for asthma is appropriate from the documented informal claim prior to the formal application on which the benefit was eventually granted (and absent a forwarding of the form by VA as would have altered the tolling of the time period involved), namely July 15, 1995 but no earlier. Increased Rating Applicable Criteria, Factual Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Furthermore, when, as in this case, the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the criteria in effect prior to October 7, 1996, bronchial asthma warranted a 10 percent evaluation if it was mild, with paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks. In order to warrant the next higher evaluation of 30 percent, the disorder must have been moderate, characterized by asthmatic attacks that are rather frequent (separated by only 10-14 day intervals) with moderate dyspnea on exertion between attacks. A 60 percent evaluation was warranted if the disorder was severe, with frequent attacks of asthma, marked dyspnea on exertion between attacks, with only temporary relief by medication, and with more than light manual labor prohibited. The 100 percent rating required that the asthma be pronounced, with very frequent asthmatic attacks, severe dyspnea on slight exertion between attacks, and marked weight loss or other evidence of a severe impairment of health. 38 C.F.R. § 4.96, DC 6602 (1996). Under the new criteria, the Veteran's bronchial asthma is still rated under Diagnostic Code 6602. 38 C.F.R. § 4.97, Diagnostic Code 6602. A 10 percent evaluation is warranted where the Veteran has an FEV-1 of 71 to 80 percent of predicted value, or; an FEV-1/FVC of 71 to 80 percent of predicted value, or; intermittent inhalation or oral bronchodilator therapy. A 30 percent evaluation is warranted where the Veteran has an FEV-1 of 56 to 70 percent of predicted value, or; an FEV-1/FVC of 56 to 70 percent of predicted value, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation is warranted where the Veteran has an FEV-1 of 40 to 55 percent of predicted value, or; an FEV- 1/FVC of 40 to 55 percent of predicted value, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent evaluation is assigned when FEV-1 is less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; the Veteran has more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. When evaluating a disorder based on pulmonary function tests, the post-bronchodilator results are to be used in applying the evaluation criteria in the rating schedule unless the post bronchodilator results were poorer than the pre- bronchodilator results. In those cases, use the pre- bronchodilator results. See 38 C.F.R. § 4.96(d)(4). By analogy, the Veteran's respiratory disorder may be rated as a disease of the trachea and bronchi, which incorporates such disorders as chronic bronchitis (DC 6600), bronchiectasis (DC 6601), bronchial asthma (DC 6602), pulmonary emphysema (DC 6603), and chronic pulmonary obstructive disease (COPD) (DC 6604). Ratings under DCs 6600 through 6817 and 6822 through 6847 will not be combined with each other. Rather, a single rating will be assigned based on the DC that reflects the predominant disability, with elevation to the next higher evaluation when the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). When rating under DCs 6600, 6603, 6604, 6825-6833 and 6840- 6845, pulmonary function tests (PFTs) are required except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria. (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed. (iii) When there have been one or more episodes of acute respiratory failure. (iv) When outpatient therapy oxygen is required. 38 C.F.R. § 4.96(d)(1). If the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Dioxide by the Single Breath Method) test is not of record, evaluation is based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre- bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96(d)(5). However, as noted, 38 C.F.R. § § 4.96(d)(4) and (5) specifically state that post-bronchodilator results will be used in evaluating a disability unless narrow exceptions apply that are not shown in this case. When there is a disparity between the results of different PFT FEV-1 (Forced Expiratory Volume in 1 Second) and FVC (Forced Vital Capacity), so that the level of evaluation would be different depending on which test result is used, the test result is used that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Board has reviewed all the evidence in the claims file. Although we have an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Board is not permitted to reach medical determinations without considering independent medical evidence to support our findings, and must cite to competent evidence of record to support such conclusions. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991), and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Similarly, it is well established that while someone who is a layperson is not considered capable of opining on matters requiring medical knowledge, they are permitted to provide observations. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, supra. However, as noted above, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein). As identified above, notice is taken that in Hart v. Mansfield, supra, the Court held that "staged ratings are appropriate for an increased- rating claim when the factual findings shown distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings." The Court found no basis for drawing a distinction between initial ratings and increased-rating claims for applying staged ratings. In this instance, however, the Board finds that staging is unnecessary and not especially in the Veteran's best interests. The Board remanded the case so that the Veteran would identify all care-givers over the recent years and obtain such records; and for him to be reexamined by VA. The aggregate file is now available and has been reviewed en toto. He has indicated that he has nothing further to submit. VA clinical records from July 1995 into 1996 show recurrent incidents when he was having trouble breathing and that he was dependent on his inhaler for which he was given prescriptions on a regular basis. Associated symptoms included wheezing, rales, poor airway movement, nasal congestion, some increased erythema in the nasal mucosa, shortness of breath and generally nonproductive cough with occasional yellow or whitish sputum. There is some indication that the symptoms exacerbated not only when his inhaler ran short but also on environmental allergens, e.g., his neighbor cut the grass and pollen was stirred up. Serial prescriptions were filled for various medications to include pseudoephedrine and Loratadine; and several types of inhalers including Albuterol, Alupent, Proventil, Fluticascne Prop, Triamcinolone, and starting in 1996-1997, Amoxicillin, Bisacodyl, and Penicillin. Rare pulmonary function tests commencing in 1999 showed a long history of dyspnea in moderate restrictive defect. He was cautioned to avoid noxious pulmonary stimuli. In May 1999 he was noted to be getting allergy shots to calm the asthma symptoms. By June 1999, he had been prescribed a home nebulizer by VA and given the appropriate educational series. On VA examination in November 1999, the Veteran reported an increase in his asthma symptoms. He was no longer able to participate in sports due to shortness of breath. Even wearing cologne would exacerbate the asthma symptoms. He had experienced three episodes of paroxysmal nocturnal dyspnea, having to wake up and take his inhalers. He had a productive cough with clear sputum and hemoptysis at times. The dyspnea on exertion would depend on the day, but he had daily attacks. He was using the home nebulizers as well as Serevent, Azmacort, Albuterol and Flovent. He had to be seen in the emergency room 2-3 times a month for asthma attacks. His lungs showed expiratory wheezes. There was no clubbing, cyanosis or edema of the extremities. Ongoing VA and private clinical reports show continuing symptoms and an association between the symptoms and service. Whenever he ran low on his inhalers he was also having exacerbations. Pulmonary function testing was apparently not undertaken. On VA pulmonary examination in October 2004, he described his history of increasing symptoms. He now had daily episodes of bronchospasm which would awaken him in the middle of the night. He said he had been on an emergency basis about 6 times a year but had not been hospitalized. Weather also seemed to be a precipitating factor. He was not using supplemental oxygen. He had a productive cough with no phlegm; he had dyspnea on exertion when having bronchospasms. He reported the intervals between attacks and noted he was taking various medications but had not been on oral steroids to that point. He had been using Flovent, 220 mcg as high as 3 puffs, twice a day. He was given pulmonary function tests, but had been given nebulizer treatment thereon. PFT showed PVC of 4.0 liters or 87% of predicted; FEV-1 of 3.1 liters or 87% of predicted and FEV-1/FVC of 75% with FEF25-75 at 60% of predicted. DLCO was 72% of predicted. There was an obstructive pattern and reduction of flow in the small airways with improvement in the FEV-1 and FEF25-75 (by 67%). It was noted that he had been seen by VA and his medications were continued and changed but none were controlling his asthma at the time of the examination. Ongoing VA clinical records are in the file showing the addition of Prednisone but it is not totally clear when this started, as the records in the file relate only to refills. This was in addition to a number of other antihistamines and inhaler medications. One of his ongoing care-givers provided a summary statement in July 2008 to the effect that he had been seen with severe steroid dependent asthma and allergic rhinitis for the past several years. He had not responded to alterative therapy and his current Prednisone dosage was 20 mg. a day in addition to Advaire, Mometasone and Singulair and Albuterol (nebs. and mdi). He used the inhaler on a daily basis and had both exertional and nocturnal symptoms. He had had to increase the Prednisone several times a year. And while he had not been hospitalized, this was due to his diligence in taking the medications. Nonetheless, the physician considered him to have severe persistent asthma with chronic exacerbations, for which he was still seen every 3-4 months. Summary notations are in the file showing that PFT in early 2008 showed FEV-1 at 79% of predicted; FEV-1/FVC was 74% of predicted. He had small airway obstruction with post bronchial response in large and small airways. He had productive cough, daily white sputum and difficulty breathing which started when walking more than one block distance. He had wheezing attacks about 2-4 times a day and was continuing to take Fluticasone 500/salmeterol 50 mcg inhaler disc twice a day as well as daily puff inhalers as well. He had lost about 40 days of work in the prior year. His weight was stable. In assessing the Veteran's ongoing pulmonary symptoms since 1995, it is clear that they have deteriorated somewhat, but this has seemingly been an insidious but fairly sustained incremental process. His symptoms include 24/7 dyspnea, wheezing and other symptoms with restrictive impairment. He has used a remarkable assortment of inhalers without real progress, and is now taking prednisone with still only modest improvement. His symptoms are daily but require visits more frequently than once a quarter, and have caused him to miss 40 days of work in one year (the most recently annotated year), which shows clear-cut impairment on both his daily life and his occupational situation. As a general rule, PFTs are but one of myriad criteria for assigning compensation for asthma, and to appropriately utilize such tests for assigning compensation, they have to be conducted in a regular consistent manner so that results may be suitable compared and contrasted. All in all, from June 1995 to the change in the regulations in October 1996, the Veteran's asthma was always moderate and more often than not was severe, with frequent attacks, marked dyspnea on exertion between attacks, and only temporary relief by medication, but without more severe symptoms to include marked weight loss or other evidence of a severe impairment of health. In this regard, while there are certain regulatory parameters for PFT, in this case, the actual testing was rarely done and the rare documented results are not entirely consistent with the other overwhelming clinical factors demonstrated. Since October 1996, his symptoms have been the same or somewhat worse than in the year and a half prior thereto. More often than not the Veteran has significantly impaired FEV-1/FVC and FEV-1, but more important, he often has monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids. However, he not had more than one attack per week with episodes of respiratory failure, and while he continues with inhalers and other medications, he is not on high dose corticosteroids or immuno-suppressive medications. Thus, while the evidence is not unequivocal, and taking into consideration the functional impact his asthma has had on his daily life, the Board finds that a 60 percent rating is warranted under both old and new regulatory provisions from the date of his initial claim, July 15, 1995. Other than as herein stated, there is no showing of repeated hospitalizations (albeit in part because of his own commitment to compliance with the treatment regimen), or other exceptional occupational related circumstances which would warrant the assignment of another higher rating on an extraschedular basis. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER Entitlement to an EED prior to March 16, 1999, specifically from July 15, 1995, for a grant of service connection for asthma is granted. Entitlement to an initial rating of 60 percent but no more from July 15, 1995, is allowed, subject to the pertinent regulatory criteria relations to the payment of monetary awards. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs